Om Parkash Yadav Vs State of Haryana and Others

Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for issuance of a writ in nature of mandamus directing the respondents to sanction/grant the Ist cadre specific Assured Career Progression Scale Rs. 15,600/- Rs. 39,100/- + Rs. 6000/- GP to the petitioner w.e.f. 10.09.2016 along with interest, as the petitioner has already completed 5 years of service as Assistant Agriculture Engineer as a qualifying service towards the increase in pay scale, as per departmental rules, in the interest of justice, equity and fair play; And Writ in the nature of Certiorari for quashing of the impugned order Dated 30.06.2022 (Annexure P-11) passed by respondent no. 2, whereby the petitioner has been refused to have the benefit of the Ist cadre specific Assured Career Progression Scale Rs. 15,600/- Rs. 39,100/- +

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DIVYANSHI Rs. 6000/- GP w.e.f. 10.09.2016 along with interest, is absolutely wrong, 2026.07.29 12:32 I attest to the accuracy and integrity of this document

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illegal, perverse, without jurisdiction and is passed without granting an opportunity of hearing to the petitioner and is violative of the principles of natural justice.

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Brief sequence of events in chronological order is as follows:– 07.03.1983: On 07.03.1983, petitioner had joined respondentDepartment on contract basis as Junior Engineer in Agriculture Department, Haryana.

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01.11.1986: On 01.11.1986, services of the petitioner were regularized. 09.09.2011: On 09.09.2011 (Annexure P-1), petitioner was promoted to post of Assistant Agriculture Engineer on temporary basis with probation of one year.

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10.09.2016: It is the case of the petitioner that after completion of five years, he became entitled for the Ist cadre pay scale on 10.09.2016.

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23.08.2017: Vide letter dated 23.08.2017 (Annexure P-2), case of the petitioner was sent to Joint Director/respondent No.4 for grant of Time Scale after completion of 5 years.

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20.02.2018: On 20.02.2018 (Annexure P-6), the Government of Haryana issued a letter for implementation of Human Resource Management System (HRMS)-Processing of Assured Career Progression Cases (ACP).

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23.04.2018: Vide letter dated 23.04.2018 (Annexure P-7), the respondent No.2 asked the petitioner to send his request to the HRMS.

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29.10.2018: Petitioner had sent his request through HRMS vide letter dated 29.10.2018 (Annexure P-8). However, no response was received

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thereto.

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Notwithstanding the above, Petitioner sent 3 reminders dated 08.05.2018 (Annexure P-3), 24.08.2018 (Annexure P-4) and 13.9.2018 (Annexure P-5) for grant of time scale.

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31.03.2020: On 31.03.2020, petitioner retired as Asstt. Agriculture Engineer.

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03.03.2022: Petitioner had filed CWP-4057-2022 titled as Om Parkash Yadav vs. State of Haryana and others which was disposed of vide order dated 03.03.2022 (Annexure P-10) directing the respondents to decide representation dated 23.08.2017 (Annexure P-2) filed by the petitioner.

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30.06.2022: Vide the impugned order dated 30.06.2022 (Annexure P-11) claim of the petitioner was rejected.

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Hence, the present Writ Petition.

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It is inter alia submitted by learned counsel for the petitioner

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that the impugned order is unsustainable on account of the fact that as per the Haryana Agricultural (Group-A) Service Rules, 1996 (hereinafter referred to as ‘1996 Rules’), the Government has the power to exempt the requirement for passing the departmental examination. It is pointed out that said exemption was granted in case of the persons mentioned in the list Annexure P-12. The respondent no. 2/Department sanctioned Ist Cadre Assured Career Progression Scale to the below mentioned Assistant Agricultural Engineers promoted during the year 1992 and 1997, who have not cleared the Departmental test in higher standard in accordance with the order of the Finance Department dated 11.08.2014, who are as

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under:

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(i) Satbir Singh Malik S/o Dalip Singh;

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(ii) Sham Lal Gupta S/o Dev Saran; (iii) Satish Kumar Banga S/o Ram Parkash;

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(iv) Vinod Kumar S/o Chhotu Ram;

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(v) Dilbagh Singh S/o Bishan Dayal;

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(vi) Zile Singh S/o Singh Ram;

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(vii) Chander Singh S/o Badhu Ram;

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(viii) Raghbir Singh Lohan S/o Pat Ram;

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(ix) Ram Pat S/o Suraj Bhan;

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x) Jaipal Singh S/o Dharmendra Nath;

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(xi) Raj Pal Singh Malik S/o Harpool Singh.

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Learned counsel for the petitioner further submits that similarly placed employee of the agriculture department mentioned in Annexure P-12 have been given benefit of sanctioning the Ist cadre specific Assured Career Progression Scale Rs. 15,600/- Rs.39,100/- + Rs. 6000/-Grade Pay as increase in pay scale and pensionary benefits.

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Accordingly, the said act of the respondents is against the principles of natural justice as well as in violation of Article 14 of the Constitution of India.

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He accordingly prays that the present Writ Petition be allowed; and the impugned order dated 30.06.2022 (Annexure P-11) be set aside.

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Per contra, learned State Counsel has vehemently opposed submissions advanced on behalf of the petitioner and pointed out that petitioner is not entitled to the benefits sought as the petitioner has not

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passed the departmental examination, which is mandatory for grant of promotion/ACP. In this regard, learned State Counsel also refers to the averments made in the short reply dated 26.02.2024 filed by Joint Director (Admn.) Office of Directorate of Agriculture and Farmers Welfare Haryana, Panchkula on behalf of respondents No.1 to 4. He accordingly prays for dismissal of the present Writ Petition.

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No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions of the petitioner.

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Rule 13 (1) of the Haryana Agricultural (Group-A) Service Rules, 1996, reads as under: –

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“Rule 13(1) Every officer shall be required to pass the departmental examination as shown in Appendix 'E' in Accounts and various other rules within a period of two years if appointed by direct recruitment and within a period of one year if appointed otherwise:

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Provided that no officer who has been promoted from Group B service will be required to pass the departmental examination, if he had passed the same with credit during his group B service: Provided further that if the Government may for reasons to be recorded in writing extend the period for passing the departmental examination by one year:

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Provided further that if the officer fails to pass the departmental examination even within the extended period, the Government may for reasons to be recorded in writing exempt such officer from passing said examination . ”

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A bare reading of the above shows that in order to be eligible for grant of benefit of ACP, it is mandatory condition to pass the departmental examination. Admittedly, petitioner has not passed the said departmental examination. As such, the said benefit cannot be granted to the petitioner.

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It is the contention of the petitioner that discretion granted to the government vide the above proviso to grant exemption from passing the departmental examination be also exercised in favour of the petitioner as, the said discretion has been exercised in case of other persons mentioned above. However, there is no merit to the said argument. The above proviso makes it crystal clear that exemption from the Departmental Examination is envisaged only in case the Officer “Fails to pass” the departmental examination. This necessarily implies that the officer attempts the examination and fails to pass the same. However, in the present case, it is undisputed fact on record that the petitioner has never given his consent to take the departmental examination in the first place. In such a situation, the question of exercise of discretion does not arise. In this regard, averments made by the respondents No.1 to 4 in para 10 of their short reply dated 26.02.2024 is relevant, which reads as follows:

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“10. That similar exams were office conducted vide letters i.e. letter dated 24.10.2017, 21.08.2018, 22.05.2019 and 19.11.2019 by issuing letter to the Field Offices for conducting the Departmental Examination in the year 2017, 2018 & 2019. The concerned field offices sent the name of willing

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employees to this office for appearing in the above examination. It is pertinent to mention here that the petitioner never gave his consent/willingness to appear in the above examination which were conducted by the Department on various dates in diferent years.f From the above, it depicts that despite conducting the departmental exam petitioner was not willing to appear in the above examination.

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11. That ample opportunities were given to the petitioner for passing the departmental examination but the petitioner never appeared in the above examinations which were conducted by the Department. The concerned field offices sent the application of Officers who were willing to appear in the above examination and the who qualified the above examination have been granted the benefits as admissible as per rules. Hence, it is not possible to grant the benefit of 1st cadre specific ACP without complying with statutory rules i.e. qualifying Departmental examination which is mandatory as per rules for the petitioner which he has not qualified till date retirement i.e. 31.03.2020. Hence, the petitioner is not entitled for the benefit of 1st Cadre Specific ACP.” (Emphasis added)

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Thus, it is undisputed position on record that petitioner has

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not given his consent or willingness to appear in the departmental examination. As such, petitioner is not entitled to seek parity with other persons as, petitioner has been unable to show that the said persons had also not given their consent to take the departmental examination. No averments to this effect have been pointed out in the writ petition.

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It is also not disputed by the petitioner that the pay scale which the petitioner is claiming is admissible to Group-A officers; whereas the petitioner is governed by Group-B rules. Further, the following averments made in paras 8, 11 and 12 of the short reply dated 26.02.2024 are also relevant: –

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“8. That it is most pertinent to mention here that the petitioner while working as Junior Engineer, passed the departmental examination with higher standard (40%) on 17.05.1995 and he was promoted to the post of Assistant Agriculture Engineer vide order dated 09.09.2011. After promotion to the post of Assistant Agriculture Engineer, for getting the benefit of 1st cadre specific ACP, the petitioner should have passed the departmental examination 50% (with credit) whereas, he has passed the examination with higher standard 40% which debars the petitioner from getting the promotion/pay scale of the post of Group A officer/ACP. XX XX XX

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12. That so far as the averments raised by the petitioner with regard to relaxation granted to other employees/officers is concerned, in this context, it is respectfully submitted that to comply with the order dated 03.03.2022 passed by Hon'ble Punjab and Haryana High Court in CWP No. 4057 of 2022, the office of answering respondent, before passing of speaking order, vide letter dated 01.06.2022 submitted the matter to the Administrative Department for taking final decision with regard to relaxation. The Administrative Department vide letter dated 23.06.2022 (Annexure R-2) intimated that the matter with regard to grant the ACP to petitioner has already been examined and the Government has observed that ACP

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can only be granted only after passing the required departmental examination as per rules.”

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No replication has been filed by the petitioner to the aforesaid short reply dated 26.02.2024. As such, all the above said contentions raised by the respondents are deemed to be correct and true.

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Similar issue had come up before this Court in the case of Bhagat Singh vs. State of Haryana and others, decided on 29.11.2023, Neutral Citation No. 2023:PHHC:152037; wherein it was held that “ The said condition is not being fulfilled by the petitioner as the petitioner never passed the departmental examination which is a mandatory condition to become eligible for promotion to the post of Kanungo. An employee who does not fulfill the qualification for promotion cannot be treated to have been stagnating in the feeder cadre so as to entitle him the benefit of Assured Career Progression Scheme.” ; and the Writ Petition came to be dismissed. The said dismissal was challenged by way of LPA-250-2024 titled as Bhagat Singh vs. State of Haryana and others, Neutral Citation No. 2024:PHHC:065199-DB, which came to be dismissed vide judgment dated 09.05.2024 as follows: -

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“3. The writ petition was, thus, filed without challenging the conditions as such. The defence of the State was also that the benefit of ACP has to be granted to the government servant who is fit to be promoted to the next higher post in the functional hierarchy in his cadre, but could not be functionally promoted due to lack of vacancy. Further, if such

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promotion involves test of any departmental post or other test etc. such condition is also to be fulfilled. The appellantwrit petitioner having not cleared the departmental test the State raised its objection. The learned Single Judge also noticed that the appellant-writ petitioner had superannuated on 30.06.2018 from the post of Patwari and the writ petition as such was filed in the year 2021. The claim of the appellantwrit petitioner as such, that on completion of 24 years of service he was entitled for the second ACP, had been rightly declined on account of him having not passed the departmental examination which was mandatory.

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4. Reliance has been placed upon paragraph 13 of the writ petition to submit that other similarly situated persons were granted the benefit while placing reliance upon the order dated 28.10.2003 (Annexure P-6). The State in its reply in paragraph 13 has specifically stated that the benefit granted to Mahabir Singh and others in CWP-1997-2007 and other connected matters on 22.08.2022 was going to be the subject matter of challenge in LPA and, therefore, had contested the claim for grant of ACP. Apparently, the Rules of 1998 are not subject matter of challenge. The appellant-writ petitioner was very well aware of the reason given in the impugned order for denial of ACP. The appellant-writ petitioner having not chosen to challenge the Rules as such, we are of the considered opinion that the learned Single Judge is well justified denying the benefit. The fact also remains that it is after retirement that the writ petition had been preferred, whereas the cause of action for the grant of benefit had arisen in the year 2006. The same having not been preferred during the period of his service, but after three years of retirement, we are of the considered opinion

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that the writ petition was, therefore, rightly dismissed by the learned Single Judge.

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5. It is settled principle that even on the anvil of Article 14 of the Constitution of India, the appellant-writ petitioner will not be able to make much headway. It is settled proposition that even if benefit has been granted against the Rule(s) as such the said Article would not operate in the negative manner and an illegality which has been done in the case of one employee will not have to be repeated in the case of others as has been held by the Apex Court in various judgements which read as under:-

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In Shanti Sports Club & another Vs Union of India & others (2009) 15 SCC 705, the issue was regarding the release of land under the Land Acquisition Act, 1894 and on account of a decision having been taken parity had been sought. It was held that the concept of equality enshrined in Article 14 of the Constitution has to be read as a positive concept and there cannot be a mandate that the State should commit illegality or pass wrong order because one such order has already been passed.

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The three Judge Bench in R. Muthukumar & others Vs Chairman and Managing Director Tangedco and others 2022(1) S.C.T. 652 also arrived at the same conclusion while examining the earlier precedents on the said point. The same reads as under:-

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"24. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj and another v. Special Land Acquisition Officer (2013) 14 SCC 81, this court ruled that:

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"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated."

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Other decisions have enunciated or applied this principle (Ref: Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745, Anand Buttons Ltd. v. State of Haryana (2005) 9 SCC 164, K.K. Bhalla v. State of M.P. (2006) 3 SCC 581; Fuljit Kaur v. State of Punjab (2010) 11 SCC 455, and Chaman Lal v. State of Punjab (2014) 15 SCC 715). Recently, in The State of Odisha v. Anup Kumar Senapati , 2019 SCC Online SC 1207 this court observed as follows:

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"If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision."

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